HOW go Causes now adays, Monsieur Prejudice?

Basely, Roguishly, Facti­ously, Whiggishly,, not according to Evidence. There are a sort of Folks call'd Ignoramus-men, that refuse some times to find Bills, though there be Positive Oaths before them.

That may be, because perhaps, Posiitive Oaths are not always true Evidence; and therefore, for ought I know, these Folks may not be such Dishonest, or such Ignoramus­follows as you take them for: But Persons that have a due regard to their duty, and the weight of their Office, where­in other Mens Lives, and their own Souls are concern'd, and understand themselves so well as to know, That they are [Page 12] [...] [Page 1] [...] [Page 2] Judges (in some respect) as of Law, as well of Fact.

How, Juries Judges of Law, that's fine I saith?

How fine soever you think it, 'tis true; I say in some respect: For, ex facto jus Oritur, the Law arises out of, and is complicated with the Fact; and no Man can well and truly try, and true deliverance make, nor well and truly Inquire and Present Crimes, without respect had to both of these, and comparing one with the other. 'Tis true, in difficult points Juries may, and ought to crave the Advice and Opi­nion of the Judgess and so they have oft-times the Statutes read to them; and to what purpose, if not to judge of them, and compare the matter with them. But in Common Cases he is not fit to be a Grand-Jury-Man, that does not under­stand the Nature of Offences by our Laws; and to think that he is bound to find contrary to his Knowledge in such Cases, is Absurd: As, suppose a Man should be Indicted of High-Treason, for that he Traiterously, Maliciously moved by the Instigation of the Devil, had, and kept an English Bible in his House: Now let an hundred and fifty people swear positively the Fact, viz. That he had such a Book in his Custody, would you, if you were a Grand-Jury-Man, retorn this In­dictment Billa vera, and charge the poor Man upon your Oaths, to answer for High Treason?

Well! This is nothing to my Business: There was no doubt or scruple in the late Cases, about matter of Law; and though there were positive proofs as to Fact, yet they did not find the Bills.

That possibly may be, (as I told you but now) be­cause, such positive proof was no good Evidence; for the Ju­ry are Judges of Evidence, or else they signifie no more than some would have them, that is just nothing: And therefore let Witnesses be never so Rampantly positive; yet if the Ju­rors have good and sufficient Grounds, not to believe them, they will, nay they must remain as Ignorant as before, be­cause there comes no credible proof to satisfie them (who are upon their Oaths as well as the Winesses) that the Party is Guilty of the Crime charg'd, or ought to be put to Answer for the same. For that in Law is called EVIDENCE, [Page 3] by which we may Evidere quid sit Justum plainly see what is Just, or as Cook 1. Instit. fol. 283 saith, it is called Evidence, because thereby the matter is to be made Evident to the Jury.

Well for all your pratting, I hope to see good Chri­stian Juries once again amongst us.

What do you mean standing ones, People that made a Trade on't, got a Livelyhood by the Groats and Sixteen Pences, and now and then a good Dinner, or small present by the by; Fellows that were Indigent in Estates as Understandings; That slept over an Evidence, found Bills of Course, Hang'd or Sav'd, Pro-Plantiff'd or Pro-Defendanted it by pure chance; Threw Dice for their Verdicts, Esteem'd themselves Retorn'd and Sworn only to be the Courts Eccho's, and thought it piacular not to en­cline that way the Judge Nodded his Reverend Head.

Better such say I than Ignoramus-men; But I meant, we shall have no Dissenters Jury-men, for don't you know, 'tis a late Rul'd Case that such ought not to be Impannel'd.

I know no such matter, however for ought I see 'tis all one, for lately when there was not one Dissenter, there was as much Clamour as if they had been all so, nor did I ever hear of any Law of England that excludes any Prote­stant from being a Jury-man, because he is a Dissenter from or Non-frequenter of Church Ceremonies, If qualified with Estate and Understanding; For at that rate, if Popery should ever get uppermost, no Protestant at all would be capable of being a Jury-man, because a Non-Conformist to Holy Church; Old Lawyers tell us, Vbi Lex non distinguit, nec nos distingue­re debemus, we never ought to put a difference, where the Law puts none. Now if no Statute excludes Protestants un­convict of any Crime, or Dissenters (Qua tales) to serve on Juries, I should think we ought to wait at least till an Act of Parliament be made to that purpose, before we deny them Liberam Legem, And to Act otherwise in my silly O­pinion seems not only unwarrantable, but a daring Usurpati­on of Legislative Power, But what sentiments future Parlia­ments may have thereof—Ignoramus. But I pray what Reason can be assign'd to exclude them.

Reason stout and substantial, because they are Brea­kers of the Law, For can it be Rational to suffer one Breaker of the Law to give a Verdict against another Breaker of the Law, for every Verdict of a Grand-Jury is a kind of Evidence against a Prisoner in order to Tryal or Discharge.

Well then, if because they are Breakers of the Law, they must be excluded, let all Common Swearers, Drunkards, Profaners of the Lords Day, &c. be shut out, for these are Law-breakers too. To sell Claret is to Violate the Law Therefore no Vintner may be a Jury man (if they could not be Captains neither, what a sad case were we in!) Besides, if to be Breakers of the Law disable men to be Jurors, why should not the same take away the Credibility of a Witness? So that it seems if none give Evidence to a Grand-Jury but such as are Law-Breakers, they will have no Reason to Credit them, and if they do not believe the Evidence, what can they do but return an Ignoramus?

But how shall the Jury-men know the Witnesses are Law-Breakers?

Oh, they have Engins call'd Interrogatives, will do that feat, as suppose a Person swears John a Stiles spoke such or such Treasonable Words, the Grand-Jury ask when, and he names Four or Five Months ago, then they demand when he first discovered it to any Magistrate, and he say, but Two or Three days ago, now is it not plain, that here the Witness confesses himself. a Breaker of the Law. viz. Guilty of Misprision of Treason for concealing of Treason so many Months. And was not this the Case of all the Evidence against Rouse? and in my opinion concealing of Treason is a greater Breach of Law then going to a Conventicle.

But the Witnesses had got Pardon?

All of them had not, besides tho' a pardon exempt a Man from Punishment and render him a Legal Witness, yet how far it makes him a Credible Witness, is only in the Breast of a Jury.

Why pray was Docter Oats and others believ'd a­gainst the Papists?

Because his and their Testimony was Back'd by [Page 5] that undeniable Evidence of Colemans Papers, Godfreys Murder and a thousand other pregnant Curcumstances, which makes the Case much different from that where peo­ple of very suspected Credit, swear the Grosest Improbabili­ties.

But the very same Witnesses had lately been believ'd against the Papist?

What then? May not a Man be very Honest and Credible at one time, and Six Months after by necessity, Suborn. [...]on [...] Malice, or Twenty ways, become a Notorious Villain.

But what proof was there of any such Change?

How know you, but the Jury or some of them knew it of their own knowledge, for I shall show you by and by that the Law supposes the Jury to know more of the Wit­nesses than the Court does. If one of the Evidence, shall in giving his Testimony, possitively affirm things, which some of the Jury of their own knowledge know to be absolute­ly false, can you blame them if they give little Credit to all the rest that such a Fellow shall swear? Again the Law says, for such a Crime, a Man unless he be Prosecuted within such a time, shall not suffer the Pains or Penalties that other­wise are awarded, now if after this time elaps'd an Indictment be brought, and Twenty Witnesses swear the Crime, and the Jury believe them too, yet they ought not to find the Bill, because the Law has already acquitted the Party for want of Prosecution; which is none of the Grand-Juries fault, And indeed delays in bringing men to Tryal are apt to raise a strong suspition that the Evidence is not Right, and that the Prosecutor himself thinks so, For a Trayter ought not to live an hour; a Witness against the Prisoner may dye, and so a Traytor escape, or a Witness my dye that could have spoken materially for him, and so an Innocent Subject may lose his life, when he is Guiltless. And therefore certainly, a Pro­secutor will never put off a Tryal for Four or Five Months, unless he want Witnesses or the Witnesses want their Lesson, which may possibly be, for 'tis a difficult matter, especially for an Irish-man to learn to spake true English.

Irishman▪ why, what have you to say against Irish-men?

Nothing, Sir, only I find in Bakers Chronicle, fol 347, That the Bishop of Rosse being questioned before Q Elizabeths Council for Treason, and urg'd with somewhat that some English Gentlemen had testified against him: He lovingly requested their Lordships to give no Credit to it; for as much (says he) as by a received Custome, which hath the force of a Law, the Testimony of an English-man against a Scotch-man, or of a Scot against an English-man is not to be admitted: Now I think there's as much Reason for such a Custom against an Irish-man, as against a Scot.

Prethee no more of Irish, we shall have the Irish Evi­dence Eves drop us, by and by.

God shield Man; I'le have nothing to do with them, If I can help it, and therefore, because we have hitherto been dull, I'll tell you a Story.

Ay, do, I love Stories dearly; but especially Thomp­son-Stories, and Observator Stories.

Mine is of neither of those sorts but an honest Country Calve-shire Story. for it comes from about Ded ham in Essex—There was a Londoner that had a Farm thrown upon his Hands, came down with several of his Friends to Buy Cattle to stock it; and there was a farmer (a Rich Jol­ly Blade, for all he wore a Red Jacket) brought him into a publick Field, where was an Herd of Irish Cattle, and some English amongst them; the Londoner and his Companions first handled the English Cattle, though very gently; for they would scarce endure to be touched, which made them suspect they were not sound as they should be: Then they handled one of the Irish Cattle and found it not onely Ras­cally Lean, but that it had a kind of base Disease Contracted, as 'tis supposed by eating some Hired Pasture, or else by feed­ing amongst other infected Irish Cattle: Then they handel­led a second Irish Bullock that look'd more lusty, yet had the same Distemper; and in a word, they perceived that all the rest were Diseased and Rotten within; and inquiring the Reason, were told, that one Gaffer Mouse or House, or such a kind of Name, had been Herdsman, who not allow­ing so much Pasture, as they crav'd for meer Hunger made [Page 7] them leap out of those short Commons into the Grounds of one of the Richest men of all the Country, and there had surfeited themselves with too greedy feeding. So upon full view the Londoner and his Friends could not believe there was one sound Beast among them, neither English nor Irish: For all grazing in the same Ground, and drinking in the same Pond, they had all Contracted an In-Credible Distemper, and indeed they smelt strangely, and a lewd Hogo came from their very Breath. And therefore they would have no such Cattle to stock their Ground with, and told the Farmer that he would do well to separate his Irish from the English Cattle; for that by the Late Act of Prohibition of Irish Cattle, all English were to be forfeited, that should be found in the same Herd with the Irish; or rather that he should send all the Irish back, to see if their own Native Soil would Recover them. And 'tis thought he'l take their Council, for these and some other Londoners, have so blown upon the whole Herd; that 'tis be­lieved no Essex or Middlesex Graziers, nor Oxford-shire Butchers, nor scarce a Chapman in the whole Country will meddle with them; so that the last news I heard from thence it was thought the whole Herd would die in a Ditch, and be made Carrion or Hawksmeat of.

What a vengance is all this story of rotten Cattle and a Cock and a Bull to our Discourse?

Nothing that I know of, but I love to humour the World sometimes and talk Impertinently; But if we must have tother crash about Juries, then I say, That if an Indict­ment be laid against a Man for Criminal Words, said to be utter'd in a Colloquium or Discourse, now the Witnesses roundly swear all the Words in the Indictment, yet unless they will relate and set forth the substance of the whole talk, 'tis impossibe the Jury should judge of the Matter, For the foregoing and subsequent words may render expre­sions that are Innocent and Loyal, which taken to halfs, may be rank Treason: As if one should say, to affirm the King has no more Right to the Crown of England than I have (which is the Opinion of the Jesuits of his Majesty, if once Excommunicated by the Pope) Is detestable Treason▪ [Page 8] And two Men at some distance, not well hearing or remem­bring, or maliciously designing against his Life, should swear—That he said the King had no more Right to the Crown than he had; now that the Man did utter these very Words is true, but if you ask the Evidence the rest of the Colo­quium, they shall tell you there was much more discourse but they cannot remember it, what satisfaction is this to a Jury, or would it not be hard for a man to be put to hold up his Hand at the Bar, under the frightful charge of Treason in this Case. Or if a Minister in his Sermon, should recite that of the Psalms, The Fool hath said in his Heart there is no God. Jesuited Evidence now may come and charge him with Blasphemy, and swear that he said there was no God, and ask them what expressions besides he used, may excuse themselves and say, 'tis a great while a go we cannot remember a whole Sermon, but this we all positively swear-He said there was no God.

The Inquiry of a Grand-Jury should be suitable to their Title, a Grand Inquiry, else instead of serving their Country, and presenting real Crimes, they may oppress the Innocent, as in the Case of Samuel Wright and John Good the very last Sessions, Good Indicts Wright for Treasonable Words, and swore the Words positively, but after a Grand Inquiry, the Grand-Jury found that Wright only spoke the Words as of others, thus they say, so and so,—and concluded with this—They are Rogues for saying it; And also Good at last confes­sed that Wright was his Master, and corrected him for mis­demeanors, and then to be reveng'd he comes and swears against him, which he confess'd he was Instigated to by one Powel, so the Grand-Jury finding it to be but Malice, re­turnd the Bill Ignoramus, whereas if they had not Exami­ned him strictly, they had never discover'd the Intrigue, and the Master had causelesly been brought to great Charge, Ignominy and Hazard.

Well, still I say Juries ought to go according to Evidence.

What is, or is not sufficient Evidence to sway with the Consciences of a Jury, they themselves are the only Judges.

You mightily magnifie Juries I'le warrant you would have them sit with their Hats on.

Truely since they are a necessary part of every Court, and have a Power vested in them by Law, of de­termining the Lives and Estates of their Fellow Subjects, I know not why they should sit creeping with Cap in Hand; Nay, I conceive when Grand-Juries are forc'd (as of late, for I know no antient precedents for it) to heare and Examine Evidence in Court, if they should put on their Hats, the Court cannot by Law Fine them; For by Immemorial Cu­stom, they have taken such Examinations sitting with their Hats on, which Conciliated a respect to them from the Wit­nesses, whereas if they sit in a Croud truckling like School­boys, the Witnesses will not regard to Answer their Questi­ons, or Discover the Truth. And the reason (as I conceive) why the Law provides that Grand-Juries should take Exami­nations in private, is on purpose that Men or their Crimes might not be exposed, before it appeared to a Grand Jury, that the matter ought to be Publickly Tryed; Whereas when they are compelled to take it in publick, 'tis a kind of Arraigning a Man before the Bill be found against him. To what purpose is it for the Court, to hear the Evidence gi­ven to the Grand-Jury, the Jury are upon their Oaths, and ought to follow the Dictates of their own belief and under­standing, the Court have nothing to do to meddle, or inter­rupt. For they are bound by the Verdict, not by the Evidence.

Well but if the Jury goes contrary to Evidence, can­not the Court Punish them.

Not at all, the Law has provided no punishment and very reasonably, For 'tis impossible the Court can know that a Jury goes contrary to Evidence. But to satisfie you fully as to the Law in this matter I shall here recite an Adjudged Case, that of Bushel in the Two and Twen­tieth year of His Majesty, reported by the Learned Sir John Vaughan, whose Book is Licensed by the present Lord Chan­celler, the Lord Chief Justice North and all the Judges then in England, the said Case begins fol. 135 and continues to 150. The whole well worth reading, but I shall only select certain passages.

The Case was this, Bushel and others of a Jury having at a Sessions not found Pen and Mead (Two Quakers) Guilty of a Traspass, Contempt, unlawful Assembly and Tumult, whereof they had been Indicted, were Fined Forty Pound a Man, and Committed till they should pay it. Bushel brings his Habeas Corpus, and upon the return it ap­peared he was Committed—For that contrary to Law, and against full and clear Evidence openly given in Court, and against the directions of the Court in mat­of Law, they had acquited the said W. P. and W. M. to the great obstruction of Justice, &c.

Which upon solemn Argument, was by the Judges re­solved to be an insufficiant cause of Fineing and Committing them, and they were discharg'd, and afterwards brought Acti­ons for their Damage. The Reasons of which Judgment are reported by Judge Vaughan, and amogst them he useth these that follow, which I shall give you in his own Words.

Fol. 140. One fault in the Retorn is, That the Jurors are not said to have acquitted the Persons Indicted, against full and manifest Evidence, Corruptly, and knowing the said E­vidence to be full and manifest against the Persons Indicted; for how manifest soever the Evidence was, if it were not ma­nifest to them, and that they Believed it such, it was not a Fineable fault, nor deserving Imprisonment; upon which difference the Law of punishing Jurors for false Verdicts principally depends.

And fol. 141. I would know whether any thing be more Common, than for two Men, Students, Barristers, or Judges, to deduce contrary, and opposite Conclusions, out of the same Case in Law? And is there any difference that two Men should infer distinct Conclusions from the same Testimony? Is any thing more known, than that the same Author, and place in that Author, is forceably urg'd to maintain contra­ry Conclusions, and the Decision hard, which is in the right? Is any thing more frequent in the Controversies of Religion, than to press the same Texts for opposite Tenets? How then comes it to pass, that two persons may not apprehend with [Page 11] Reason and Honesty, what a Witness, or many, say, to prove in the understanding of one plainly one thing; but in the apprehension of the other, clearly the contrary thing, must therefore one of these Merit Fine and Imprisonment, because he doth that which he cannot otherwise do, preserving his Oath and Integrity? And this often is the Case of the Judge and the Jury.

And fol. 142 I Conclude therefore, That this Retorn, Charging the Prisoners to have acquitted P. and M. against full and manifest Evidence first, and next without saying that they did know and be­lieve that Evidence to be full and manifest against the Indicted Persons, is no Cause of Fine and Imprisonment.

In the Margent of that fol. 142. it is thus noted: Of this mind were ten Judges of Eleven; the Chief Baron Turnor gave no Opinion because not at the Argument.

And in the same fol. 142. he saith The Verdict of a Jury, and Evidence of a Witness, are very different things, in the truth and falsehood of them▪ A Witness Swears but to what he hath heard or seen, generally or more largely, to what hath fallen under his senses: But a Jury man swears to what he can Infer and Conclude from the Testimony of such Witnesses, by the Act and Force of his Ʋnderstanding, to be the Fact inquired after, which differs nothing in Reason, though much in the Punishment, from what a Judge, out of various Cases consider'd by him, infers to be the Law in the question before him.

If the meaning of these words, finding against the direction of the Court, in matter of Law, be, That if the Judge having heard the Evidence given in Court, (for he knows no other) shall tell the Ju­ry upon this Evidence, the Law is for the Plaintiff, or for the De­fendant, and you are under the pain of Fine and Imprisonment to find accordingly; and the Jury ought of duty so to do: Then Every Man sees that the Jury is but a troublesome delay, great Charge, and no use in determining right and wrong, and therefore the Tryals by them, may be better Abolished than Continued, which were a strange New found Conclusion, after a Tryal so Celebrated for many hun­dred years.

It is true, if the Jury were to have no other Evidence for the Fact, but what is deposed in Court, the Judge might know their Evidence, and the Fact from it, equally as they, and so direct what the Law were in the Case, though even then the Judge and Jury might honestly differ in the Result from the Evidence, as well as two Judges may, which often happens. But the Evidence which the Jury have of the Fact, is much otherwise then that: For,

1. Being returned of the Vicinage where the Cause of Action ariseth, the Law supposeth them thence to have sufficient Know­ledge to Try the Matter in Issue (and so they must) though no Evi­dence were given on either Side in Court; but to this Evidence the Judge is a Stranger.

2. They may have Evidence from their own Personal Knowledge, by which they may be assured, and sometimes are, that what is de­posed in Court is absolutely false; but to this the Judge is a Stran­ger, and he knows no more of the Fact than he hath learned in Court, and perhaps by false Depositions; and consequently, knows no­thing.

3. The Jury may know the Witnesses to be Stigmatized and In­famous, which may be unknown to the Parties, and consequently to the Court.

Fol. 148. To what end is the Jury to be Returned out of the Vicinage where the Cause of Action ariseth? To what end must Hundredors be of the Jury, whom the Law supposeth to have neerer knowledge of the Fact than those of the Vicinage in general? To what end are they Challenged so scrupulously to the Array and Poll? To what end must they have such a certain Free-hold, and be Probi & Legales homines, and not of affinity with the Party concerned? To what end must they have in many Cases the View for their ex­acter Information chiesly? To what end must they undergo the hea­vy Punishment of the Villainous Judgment, if after all this they im­plicitly must give a Verdict by the Dictates and Authority of another Man, under Pains of Fines and Imprisonment, when sworn to do it according to the best of their own knowledge?

A Man cannot see by anothers Eye, nor hear by anothers Ear; no more can a Man conclude or infer the thing to be resolved, by ano­thers Understanding or Reasoning: And though the Verdict be right the Jury give, yet they being not assured that it is so from their own Understanding, are forsworn, at least in Foro Conscientiae.

Fol. 149. And it is absurd to Fine a Jury for finding against their Evidence, when the Judge knows but part of it; for the better and greater part of the Evidence may be wholly unknown to him; and this may happen in most Cases, and often doth.

THUS far Judge Vaughan, whose Words I have faithfully recited; which, I conceive, will be sufficient to silence this Controversie for ever, and stop the Mouths of all those scandalous Observators, Hera­clitus's, and other yelping Curs, which so impudently have presu­med to Bark or Hiss against the Legal Verdicts of some late Grand-Juries.